indian judicial system a critique
LEGAL METHODS PROJECT
BY AKSHAY ZAVERI
PROJECT TOPIC:
THE INDIAN JUDICIAL SYSTEM: A CRITIQUE
LEGAL METHODS PROJECT
1. BIBLIOGRAPHY
BOOKS REFFERED:
BLACK‟S LAW DICTIONARY 869(West Group Pub. VII ed.,1999).
JUSTICE M. RAMAJOIS, SEEDS OF MODERN PUBLIC LAW IN ANCIENT INDIAN
JURISPRUDENCE AND HUMAN RIGHTS-BHARATIYA VALUES 24 (Eastern Book
Company, 2nd ed.,2000).
M. RAMAJOIS, LEGAL AND CONSTITUTIONAL HISTORY OF INDIA: ANCIENT LEGAL,
JUDICIAL AND CONSTITUTIONAL SYSTEM 25(Universal Law Publishing Co. Pvt. Ltd
.,1984).
P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar
Review, vol-30, 2003).
CASES REFFERED:
Maneka Gandhi v Union of India,(1978)1 SCC 248.
Mohini Jain v State of Karnataka (1992) 3 SCC 666.
Rudal Shah v State of Bihar AIR 1983 SC 1086.
Union Carbide Corporation v Union of India, AIR 1992 SC 248.
STATUTES:
Article 101,102 And 103, Indian Evidence Act,1872.
Article 12, The Constitution of India, 1950.
Article 124(3) (a),The Constitution of India,1950.
Article 13(1) And 13(2), The Constitution of India,1950.
Article 13(2), The Constitution of India,1950.
Article 130, The Constitution of India,1950.
Article 14, The Constitution of India,1950.
Article 142, The Constitution of India, 1950.
Article 142, The Constitution of India, 1950.
Article 22(1), The Constitution of India,1950.
Article 226 And 32,The Constitution of India,1950.
Article 256, The Constitution of India,1950.
Article 32(3), The Constitution of India,1950.
Article 356 and 365, The Constitution of India,1950.
Article 39A, The Constitution of India,1950.
Article 60 And 159, The Constitution of India,1950.
S. 57(1), Indian Evidence Act, 1872.
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LEGAL METHODS PROJECT
S.151, Civil Procedure Code, 1908.
S.151, Civil Procedure Code,1908.
S.166, Indian Penal Code,1860.
S.166, Indian Penal Code,1860.
S.166, Indian Penal Code,1860.
S.197, Criminal Procedure Code, 1973.
S.197, Criminal Procedure Code,1973.
S.197, Criminal Procedure Code,1973.
S.21, Indian Penal Code,1860.
S.21, Indian Penal Code,1860.
S.302, Indian Penal Code,1860.
S.41, Criminal Procedure Code,1973.
S.44, Indian Penal Code,1860.
S.482, Criminal Procedure Code, 1973.
S.482, Criminal Procedure Code,1973.
SS.436 and 437, Code of Criminal Procedure,1973.
SS.436 and 437, Criminal procedure code,1973.
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LEGAL METHODS PROJECT
1. INTRODUCTION
Judicial process is the method of attaining justice1 which seeks to achieve the desirables, and prohibit undesirables. Justice, is itself an irrational concept , However in a layman word justice means absence of fear which is possible only when there is - lack of arbitrariness , freedom of liberty, and equal access to the quick affordable satisfactory credible dispute settlement forum . The essence of justice lies in Rule of law which requires that law of land is stable and not arbitrary that is to say, law is not ruled by the changing government rather the government and its instrumentalities are ruled by the law . In the modern times there are two interpretations of the Rule of law, the first the more traditional view is that of the plenary adhering to the rules of the laws while the second view allows the encompassing of the ideal rules based on criteria of morality and justice within its province. Modern states follow the second principle of rule of law because a law which is stable becomes oppressive after some time , due to its failure to satisfy the needs of the progressive society.
The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater emphasis on the duty, by making the king as the head of administration . 2Dharma in ancient India did not denote any kind of religion or right but only the performance of the duties. Everyone had to perform his assigned Dharmas (Duties) .The duties assigned to the king was known as Rajadharma which was a combination of several Dharmas , hence it was considered as very pious and supreme Dharma. Although the king was the fountain head of the administration of justice, his powers were limited by the norms of Rajadharma . He neither could impose arbitrary taxes nor could favour his relatives, and if he deviated from the performance of the norms of Rajadharma , the punishment prescribed for him was thousands times more than an ordinary individual . There was no distinction between weaker and stronger and the weaker was able to prevail over stronger with the assistance of the king if his rights or liberty was encroached. This duty approach setup of Rajadharma was distorted with the coming of the Moughals and subsequently after the coming of Britishers.
Power is like a river, if controlled, it brings happiness and prosperity otherwise destruction and curse . Justice without power is inefficient, power without justice is tyranny So in order
1
BLACK‟S LAW DICTIONARY 869(West Group Pub. VII ed.,1999)
“Dharma” is that which upholds, nourishes or supports the stability of the society, maintains the social order and secures the general well-being and progress of mankind” M. RAMAJOIS, LEGAL AND CONSTITUTIONAL
HISTORY OF INDIA: ANCIENT LEGAL, JUDICIAL AND CONSTITUTIONAL SYSTEM 25(Universal Law Publishing Co.
Pvt. Ltd .,1984).
2
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LEGAL METHODS PROJECT to make power of the government purposive, efficient and in interest of the people, India adopted a normative written constitution on 26th day of November 1949 demarcating the power arrangement between the three organs of the state namely executive, judiciary, and legislature . The constitution also kept few most cherished values of the humankind beyond the reach of these three organs. Constitution seeks to remove three kind of disparity namely social, economic and political , so that weaker can prevail over stronger with the help of law if his right is violated and, Each organ of the state is required to work in this context without violating the power arrangement of the constitution .
The author in this paper seeks to deal with the critical analysis of the Indian judicial process by analysing its present and past scenario, keeping in mind constitution of India as the
Grundnorm of country .
2. JUDICIAL PROCESS IN ANCIENT INDIA
The Policy of self-restraint was the governing principle in ancient India, which was based on norms of righteous conduct named Dharma. There was no sanction and People used to follow
Dharma on their own, because of its intrinsic merit . however this ideal stateless society didn‟t last for a long time as some person out of , selfish worldly desires, began to flout dharma and created a situation of 'Matsyanyaya ' (big fish devouring small fish) . This situation forced the law abiding people to search for a remedy, which resulted in creation of the institution of kingship and formulation of "Rajadharma" (law governing kings), which was the synthesis of all Dharmas. The object of Rajadharma was to assist and support the achievement by individuals of the threefold ideals (Trivarga) ,and to ensure that they secure wealth (Artha) and fulfil their desires (Kama) in conformity with Dharma and do not transgress Dharma . Dharma had a very wide connotation involving social ,moral, legal and religious
aspect. Since
Dharma
was
entirely
dependent
upon
the
effective
implementation of Rajadharma it was considered as supreme dharma.
Dicey regarded supremacy of law is an essential of the “rule of law” in 1885 . This supremacy of Law has long before found prominence in the principles of Raja dharma , the constitutional law of ancient India . Rajadharma is a classic example of trans- personalized power system which did not allow any personalized or depersonalized power to take over the requirements of justice .
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LEGAL METHODS PROJECT
3. ATTRIBUTES OF ANCIENT LEGAL SYSTEM
The main attributes of ancient Indian legal system as derived from social and legal literatures can be summarised as below:
There was rule of law. Unlike western kings whose command constituted the imperative law, in ancient India Dharma (law) was a command even to the king and was superior to the king. Rules of Dharma were not alterable according to the whims and fancies of the king. The prevalent doctrine was that 'the law is the king of kings '. The doctrine that 'the king can do no wrong ' was never accepted in our ancient constitutional system. If the king violated the Rajadharma the punishment prescribed for him was one thousand times more penalty than what would be inflicted on an ordinary citizen.
Sources of laws (Dharmas) were based on following priority orders – Vedas/Shrutis,
Dharmasastras,The Smrities, Mimansa, Nibandas or commentaries . Customs and sadhachars were also applied if they were in conformity to the Dharmas.
There was separation of power. King had no legislative power; It was vested in a sabha (committee) of wise people. King had only corrective power, thus he could invalidate any custom if it was inconsistent with the Dharma but can‟t create a new law
(Dharma). Though the court presided by the king was the highest court he had no direct role in judicial process where an elaborate system of judiciary consisting of royal courts and people‟s tribunal was operational. King was required to exercise his judicial authority in accordance with the opinion of the judicial officers of the court who were under a clear mandate not to connive with the King when he acted unjustly. The judges were under an obligation to protect the Dharma even if their decisions were against the wishes of the King. Thus in ancient India there was independent judiciary and independent legislature.
Access to justice was very easy. Rajadharma envisaged a mechanism wherein the mere fact of information of violation of one‟s right was enough to set the law into motion.
The King, under the codes of Rajadharma was bound to take cognizance, and therefore bringing a matter to his notice was enough to render it fit for judicial proceeding, to
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LEGAL METHODS PROJECT redress the grievances. Thus the king was supposed to restore the stolen property to its owner and if he failed in performance of his duties he had to pay the owner the actual cost of the stolen property.
Procedures were not allowed to defeat the justice . Emphasis was on substance not on form. The method of inquiry was of inquisitorial nature where judge played an active role in bringing the truth and limited aliens (like modern advocates) were allowed so that parity of power can be maintained .,
The principle of "the greatest good of the greatest number", according to which, in order to secure the good of a large number of persons, injustice could be caused to a small number of persons had no application in Ancient India. The ideal laid down was that all the people should be happy (Sarve Janah Sukhino Bhavantu).
4. PARITY OF POWERS AND CRATOLOGICAL ANALYSIS OF ANCIENT
INDIAN LEGAL SYSTEM (JUDICIAL PROCESS).
“Law is the king of the kings; nothing is superior to the law; the law aided by the power of the king enables the weak to prevail over the strong.”3
The beauty of this verse is that it emphasis on the parity of power between the parties and if there is no parity of power than it is the duty of the king i.e., executive to provide help to the disadvantaged so as effectuate the equality principle. It also shows that the law was recognised as a mighty instrument for the protection of the individual rights and liberties.
Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek protection from the law with the assistance of the king, however, powerful the opponent (wrong doer) might be. Thus there was parity of powers between the individuals to seek the equal protection of laws.
3
JUSTICE M. RAMAJOIS, SEEDS OF MODERN PUBLIC LAW IN ANCIENT INDIAN JURISPRUDENCE AND HUMAN
RIGHTS-BHARATIYA VALUES 24 (Eastern Book Company, 2nd ed.,2000).
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LEGAL METHODS PROJECT
5.CRATALOGICAL ANALYSIS OF ANCIENT JUDICIAL PROCESS
If we analyse the ancient legal system on the basis of power spectrum , we can say that all six power spectrum bands are balanced in equilibrium to give a just legal system because head count was satisfied with a very high degree, time count was also satisfied because of quick contemporary judgments, ethical count is satisfied because law (Dharma) was the shared conviction of the society having maximum social and moral values , coercion band is satisfied because Praja (people) and Prajapalak(king) both were to follow the dharma in their conduct, interest and influence count is satisfied because vesting of power was in depersonalised manner avoiding the arbitrariness and king was subordinate to the
Rajadharma, besides it just upholding the interest of the public and having positive influence to mass was the rule.
6. JUDICIAL PROCESS IN MODERN INDIA
After independence India adopted a normative constitution . The present Indian judicial process is governed by British imposed adversary system even though there is no mention of it in the constitution . Main attributes of this system can be understood under following heads:– (i) ACCESS TO JUSTICE
The term access to justice is variable according to the variation of the definition of justice, earlier access to justice meant merely the aggrieved individuals formal right to litigate or defend a claim but now it means an equal right of having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum.4 Modern access to justice can be categorized into formal and informal access to justice. The formal access to justice is basically adjudication of disputes by the courts which follow the rules of Civil and
Criminal Procedure. Whereas informal access to justice includes alternative modes of dispute resolution such as Arbitration, Conciliation, Mediation, Lok adalats and Nyaya-Panchayats , which are merely of supplementary nature to the court system . They are not bound by the provisions of C.P.C and I.P.C but has to follow the principles of natural law. Informal and formal modes of justice both are against the principles of parity of law devised by Article 14
4
P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar Review, vol-30, 2003).
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LEGAL METHODS PROJECT of the constitution5, because in informal modes of access to justice one has to often compromise with his legal rights in interest of time, cost of money etc. which is very much against the guarantee of Article 14 and duty imposed on state therein .
(ii) HURDELS IN ACCESS TO JUSTICE: Formal modes of access to justice also has many drawbacks which are discussed below-
1.
Law of limitation: The aggrieved person has to satisfy first of all that his suit is not barred by the law of limitation act 1963 and if barred by law of limitation the judge may or may not entertain his suit. Thus it is absolutely denial of Article 14 which imposes unqualified duty on state to provide equal protection of laws, and is anathema to any kind of arbitrariness. Law of limitation is nothing but a restatement of exploiting British imposed law of limitation act, thus it is also hit by Article 13(2)6 .
2.
Court fees: With the institution of the suit a court fees is required which is determined by the court according to the provisions of the court fees act of 1870, and on failure to pay the court fees or postal charges the suit may be dismissed. This high cost of court fees compels the litigants to abandon their just claims and defences. Here justice is not given but sold.
Thus court fees act is unconstitutional under Article 13(2) read with Article 14, which was originally a method of raising fund and exploitation by ruler on ruled so that there can be less accountability of the state .It also does not satisfy the ethical, time and other essentials of the power spectrum.
3.
Advocacy: Advocates are inseparable part of the adversarial system, wherein the role of judge is like a referee who decides the case on account of the performance of the both parties advocates. He never intends to provide the justice by bringing the truth, but to award the best competitor. Thus in this situation , the determining factor for the judicial process and justice is the competency of lawyer which depends upon the financial capacity of the party , which results in absolute denial of the parity of power guaranteed by Article 14.
4.
Procedural hurdles: After institution of the suit the aggrieved person has to go through the procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the values chosen by the colonial masters. The main procedural hurdles can be summarised below -
5
6
Article 14,The Constitution of India,1950.
Article 13(2),The Constitution of India,1950.
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LEGAL METHODS PROJECT
(A* The aggrieved person has to prove that legal wrong has been committed against him by the defendant. (B*The aggrieved person has to pay the cost of all kinds of judicial processes.
(C* Under adversarial criminal system the rule is that unless a person proved guilty beyond reasonable doubt he is innocent but these rule is violated by the courts, when court refuses to give the bail to the accused on ground of making a classification between Bail-able and nonBail-able offences under sec 436 and 437 Cr.P.C7 .
(D* DELAY : The aggrieved party has to face inordinate delay in getting justice due to unnecessary excess time given in filing of written statement ,counter statement
, amendments in plaints , filing of unnecessary affidavit , Adjournment at every stage of the proceeding , Professional interest of the lawyer in prolonging the life of the suit , vexatious issuing of interlocutory orders, huge arrears of cases are other reasons for causing delay in getting justice Even if the aggrieved person get the decree its execution is not easy. Now justice is a generation to generation fight over one‟s legal right, examples of delay can be seen in Bhopal gas tragedy case8, Rudal Sah case9 , Mohini jain case10 etc.
(iii) DELIVERY OF JUSTICE
Delivery of justice is basically the part and parcel of the executive branch of the government popularly identified as the access to justice through administrative authorities.
Article 25611 gives a supervisory power to the union over state for compliance of laws, and
Article 356 read with Article 36512 is the consequential result for non-compliance of constitutional obligations by the state.
But when the executive fails to perform his duty, the courts venture to deliver justice as a corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide justice by giving equal protection of laws to all its citizens. But it has been seen that on many occasions judiciary has failed to provide the justice according to the provisions of constitution and statutes.
7
SS.436 and 437,Code of Criminal Procedure,1973.
Union Carbide Corporation v Union of India, AIR 1992 SC 248.
9
Rudal Shah v State of Bihar AIR 1983 SC 1086.
10
Mohini Jain v State of Karnataka (1992) 3 SCC 666.
11
Article 256,The Constitution of India,1950.
12
Article 356 and 365,The Constitution of India,1950.
8
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LEGAL METHODS PROJECT
7. CRATOLOGICAL ANALYSIS OF THE PRESENT ADVERSERY LEGAL
SYSTEM ON GROUNDS OF THE POWER SPECTRUM
Power is “the ability to affect another by its exercise”. Power has a close interrelation with the law so in order to understand the role of power in creating, supporting, and changing or subverting law Julious stone provides six power bands to verify the proper exercise of power.
When we examine the adversary system on grounds of these power bands we find following results- (1) Coercion Spectrum: The coercion spectrum is concerned with the degree of coercion involved in the power relation. A valid exercise of power or any valid law must be devoid of coercion or if at all necessary to the minimum. It is beyond doubt that the non-accessibility of justice because of high cost and other procedural hindrances can be termed as the “vulgar notion” of power by the power holder. Rich party can put down the opponents by endless delays and they can drive up expenses by costly discoveries. Poorer parties often cannot afford to pay for investigators, expert testimony, and lawyer‟s time and so on. Many possible witnesses are reluctant to come forward because of the possible harassment and humiliation in cross examination, time lost from work, and so forth .All these acts as excessive coercion.
(2) Ethical Component Spectrum: This count deals with ethical and moral aspects of law and it emphasizes that every law, decision, or policy must satisfy minimum standards of ethics and morality of the society, which differ from society to society. A uniform standard of ethics cannot be laid down for it differs from society to society. As has already been mentioned justice in the present system is hugely influenced by the counsel representing the party. There is no parity of power. Many times justice is not delivered. Adversarial process hinders peaceful resolution of disputes. Lawyers trained to be partisan advocates to promote the interest of the clients, often discord and tensions.
(3) Interest Affected Spectrum: This count draws attention to the problems faced by the subject (in this case litigants),as a consequence of improper exercise of power, that is when their interests are affected by and subordinated to the interests of power wielders(State). In this case victim has to himself fight for justice and state does not provide for any considerable assistance. There are many procedural hindrances in his way and many times such victim is not able to access justice
(4) Influence Spectrum: This spectrum means the degree of influence exerted on the person subject to power. This band differs from the coercion band as influence is a positive but
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LEGAL METHODS PROJECT sanctions are a negative concept .Influence has independent existence whereas coercion is a nonentity without fear and sanction. In adversarial system this spectrum is completely demolished. Rich can easily dodge the clutches of law; advocates can give him ample support. Such thing sets up as an example for other law abiding citizens who feel that they can also get away with law.
(5) The Head Count Spectrum: This spectrum is an inherent feature of all the four above mentioned spectrums barring the Ethical component. This count signifies the number of persons affected by any decision or law. The underlying idea of this band is to protect the interests of maximum number of persons. Justice is the first virtue of social institutions. Basic aim of legal system is to provide justice to every man in the society. But today, in India, our legal system has undergone such a deep state of crises that it is not able to provide justice to common man. Justice is not delivered to the majority of citizens because of various flaws embodied in the present system. Few among them are mentioned above. Justice delivery mechanism has badly failed to come up to the aspirations of half-clad and half-hungry masses of independent India.
(6) The Time Count Spectrum: This is by far the most important aspect of all the six power spectrums, because violation of the Time Count spectrum nullifies all other aspects. The time-count spectrum concerns itself with the stability of the other power spectrums through time. This band has two facets. One, they are self-promotive in the sense that they grow stronger by their own continuance. The second facet of time count is delay i.e., delay acts as an impediment to access and realization of justice and that preventive, as well as and protective remedies should be provided without delay. Both these facets are not fulfilled in the adversarial system. There is inordinate delay in the present system because of various reasons, few of them have been mentioned already. Moreover it has not changed to a stronger position. Thus we find that present adversary system doesn‟t answer the requirement of justice and has defied the promise of preamble of the constitution to provide (justice, social, economic and political). 8. SUGGESTIONS TO IMPROVE JUDICIAL PROCESS
The effective judicial process requires the cooperative effort of all three organs of the
Government. To this effect I suggest following reformation which should follow by the executive, judiciary and legislature –
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LEGAL METHODS PROJECT
Legislature: Legislature being policy formulator must perform following works(1) Parliament must in exercise of its power under article 32(3)13 empower the lower courts to exercise the writs jurisdiction within their local limits under, so that common people may have easy access to the justice.
(2) Parliament must in consultation with judiciary to frame a time limit within which the matter should be disposed of and its failure to attract the punishment.
(3) Parliament should make necessary amendment in advocate Act 1961 to prevent the frequent entry of incompetent person as lawyers.
(4) Alternative dispute resolution system must be proper funded and equipped with necessary infrastructure, So as to reduce the arrears of cases
(5) Parliament should by an act nullify the judgment given by Supreme Court in Ram Jawaya case and Re-presidential Reference case.
(6) Legislature by law must fix the rules according to which the quorum of the judges be fixed, so as to avoid the personal influence of the convening authority on the decision.
(7) Presently there is no supervisory jurisdiction of Supreme Court on the High court to prevent the misuse of their power except in appeal by quashing the judgment, So Parliament should empower the Supreme Court to ask the explanation from a High court judge when it found that he had exercised his power illegally
(8) Parliament by a law establishes an independent body consisting of impartial legal experts to enquire into the conduct of judges whose decisions is quashed by Supreme Court or High Court in appeal.
(9) The parliament through a law should empower UPSC to hold an All India Judicial services examination to fill up the vacancies in High Courts and no judge of high court be appointed in his home state except chief justice of that high court (as he can run the administration more efficiently than non-regional judges); so that the concept of uncle judges can be removed. The vacancy in Supreme Court must be filled up by a selection committee having statutory competence, which consists of chief justice of India, prime minister, law minister, leader of opposition party in Lok Sabha and President. The decision must be taken by the majority of 3:2 and if it is 2:2 the decision of president should be final to elevate or not a high court judge in Supreme Court.
13
Article 32(3),The Constitution of India,1950.
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(10) An amendment in the constitution be made so as to make Article 39A14 as fundamental right, Article 13(3) should also be amended and the word personal contract should be inserted. (11) Section 197CrPC15 should be repealed because it is against article 14 as it gives unequal protection to the corrupt officers and protect their illegal actions and hence is an hindrance in execution of 166 IPC16.
(12) Distinction as to bail-able and non-bail-able offence under section 436 and 437 CrPC17 should be abolished because it is against article 14, 19, 21. There is no reasonable classification as accused is treated as per the convicted person beside this there is also violation of presumption of innocence unless prove guilty. Denial of bail also amounts the complete denial of freedom protected under 19(1) (a)-(g) which is unconstitutional under article 13(1) .
(13) Guidelines given by the Supreme Court in D.K Basu and Joginder Singh cases should be incorporated in section 41 Cr.P.C18 for arrest without warrant
(14) An amendment in section 101, 102 and 103 of Indian Evidence Act 19 be made so as to provide that it shall not be applicable under article 32 and 22620. Under these Articles when
Petition lies it shall be the state upon whom burden of proof shall lie that its act was constitutional. Because in absence of this amendment the petitioner who is already victim of wrong or injury or whose fundamental right is violated has to prove that all it happens against him which is against the ethical and coercion band of power spectrum.
Executive:
Role of executive is policy implementation and ordering of facts from is to ought.
Delivery of justice is basically falls within the province of executive which is rendered the state to provide equal treatment of law and equal protection of laws to every person.
Unfortunately due to lack of ineffective implementation of Article 256 read with 365 and
356, the state often does not fulfil their constitutional obligation, hence the union government should use these supervisory and consequential provision to compel the states to fulfil their duties.
14
Article 39A,The Constitution of India,1950.
S.197,Criminal Procedure Code,1973.
16
S.166,Indian Penal Code,1860.
17
SS.436 and 437,Criminal procedure code,1973.
18
S.41,Criminal Procedure Code,1973.
19
Article 101,102 And 103,Indian Evidence Act,1872.
20
Article 226 And 32,The Constitution of India,1950.
15
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President and governor before giving his assent to an act must satisfy himself that the act is in consonance with the provision of the constitution because he has taken the oath under article 60 or 15921 to preserve, protect and defend the constitution and the law.
The President under article 124 (3) (a)22 should also appoint the distinguished jurist as
Supreme Court judges.
The Government should implement the guideline given by the Supreme Court in
Prakash singh case, so as to separate the investigating police from the law enforcing police and also to make the police free from frequent transfers, political interference etc.
The government should establish more fast track courts to remove the arrears of cases.
It should also equip the judiciary with the modern technology like e-filing of suits, amendments, affidavits, etc. it should also enable the police with these modern technology. Judiciary
The role of judiciary is policy control which comes into picture when executive fails to deliver the justice. In order to make judicial process effective the court must observe following guidelines-
Judiciary must keep in mind that its work is to say authoritatively what the law i.e. policy is controlling. Provisions of Article 14223 and 226 of constitution,
Section 482 Cr.P.C
24
and 151 of C.P.C25 though gives inherent power to the
supreme court and high court to render complete justice, it means only to fill the gap within the parameter of the constitution and statutes and it does not mean to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C
Advocates on Records case. The decision that consultation means concurrence amount to the amendment in the constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of
21
Article 60 And 159, The Constitution of India,1950.
Article 124(3)(a),The Constitution of India,1950.
23
Article 142, The Constitution of India, 1950.
24
S.482,Criminal Procedure Code,1973.
25
S.151,Civil Procedure Code,1908.
22
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LEGAL METHODS PROJECT government from republic democracy to oligarchic democracy which is not permitted to the judiciary.
When a petition is made to test the legality of the decision of any subordinate court/tribunal the court should only issue the writ of certiorari if grounds are satisfied, it must not issue other writs unless the statutory remedies are exhausted.
The chief justice of India in exercise of his power under Art 13026 should constitute at least its four regular benches in and for the eastern, western , northern and southern regions to hear the appeals from the regional high courts .
It will help the people to have easy access to the Supreme Court. It is also in consonance to the time, ethical , and influence bands of the power spectrum.
Judiciary must accept the norm of democracy that justice not only be done but it appears to be done. How government could fight against corruption if judiciary itself against the Right to Information Act, regarding disclosure of assets on ground of being not a public servant but constitutional authority. It amounts to double standing as on one hand they claim salaries and other benefits on ground of being public servant and denying the liability to disclose the assets by saying not a public servant. However, true fact is that they are public servant within the meaning of sec 21 I.P.C27.
Supreme Court must also correct its illegal wrong judgments which are still being followed in the country.
They must provide the justice when the aggrieved party knocks its door and not try to compromise the dispute as it did in Maneka Gandhi case28, because art
14 guarantees Restitutive Justice.
Judges should play an active role in bringing the truth and not merely being a silent spectator of the dispute.
There should not be presumption of constitutionality of the Act because it tends to presume a preponderance of power in favour of one party and tilts the balance unjustly. This totally affects the principle of parity of power which is ensured through guaranty of equal protection of laws under article 14 as well as article 13(1) and 13(2)29 respectively, asking the injured party to prove the wrong
26
Article 130,The Constitution of India,1950.
S.21,Indian Penal Code,1860.
28
Maneka Gandhi v Union of India,(1978)1 SCC 248.
29
Article 13(1) And 13(2),The Constitution of India,1950.
27
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LEGAL METHODS PROJECT or injury suffered destroys the guaranty of equal protection of laws. Such an opinion on part of court is extremely low on the ethical count of power spectrum.
OTHER REFORMATION
Section 166 of IPC, 186030 should be enforced „which provides –“Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
“. Under Article 14 of the Constitution it the duty of judiciary (Judiciary is a State as laid down in A.R. Antulay v R.S.Nayak AIR 1988 SC 153131) to render justice but where it fails, it amounts injury under section 44 IPC 32. Judges being public servant within the meaning of section 21 of IPC33, injury caused by them amounts offence under Section
16634 and accordingly they should be punished.
Since section 197 Cr.P.C35 is hindrance and violative of equality provisions of art 14 it should be repelled by legislature.
Court fees Act should be abolished as art 14 imposes unqualified duty on the state to render justice not to do business with justice.
Law of limitation act 1963 should be abolished as it is also against the Restitutive
Justice envisaged by art 14.
Alternative mode of adverbial system that is inquisitorial system should be implemented, as it is also envisaged by the art 14 and is in consonance with the objective of the preamble to secure justice social, economic and political because. , despite of above reformative measures it is difficult to avoid the interference of extra constitutional people (lawyers) to play with justice. In this context we can also take the help of inquisitorial system of French and Italy.
30
S.166,Indian Penal Code,1860.
A.R Antulay v R.S.Nayak, AIR 1988 SC 1531
32
S.44,Indian Penal Code,1860.
33
S.21,Indian Penal Code,1860.
34
S.166,Indian Penal Code,1860.
35
S.197,Criminal Procedure Code,1973.
31
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT
9. CONCLUSION
On ground of above cratological analysis of the Indian Judicial process under various heads the writer comes to the conclusion that present adversary judicial system is against the spirit of the constitution and is open violation of its Normative character. Judicial process is run by the persons (advocates), who have nowhere mention in the constitution (except under Article
22(1)36) and justice is not done but is purchased.
All three organs of the state has failed to fulfil their constitutional obligation to render justice according to the mandate of the constitution as various laws which are unconstitutional are still operating in the Indian judicial process few examples of which are sec 302 I.P.C37, Court fees Act 1867, law of limitation , sec 197 Cr.P.C 38etc. .
Judiciary as a state within the meaning of Article 1239 is duty bound to do complete and
Restitutive justice under Article 14 read with Article 14240, but on several occasions it has acted as dispute settlement forum. It is also duty bound under section 57(1) of the Indian
Evidence Act 187241 to take judicial notice of all existing laws having force , whether it is mentioned in the plaint or not but judges deliberately fails to take notice of this section which proves their incapacity and misconduct to deal with the cases rendering them liable for punishment under section 166 IPC and for removal from the post by parliament , but still the legislature has fails to set an example of punishment by virtue of removal of any high/supreme court judge
Under constitutional power arrangement the work of judiciary is to say authoritatively what the law is, i.e., policy controlling. Provisions of Article 142 and 226 of constitution, Section
482 CrPC42 and 151 of CPC43 though gives inherent power to the supreme court and high court to render complete justice, it means only to fill the gap within the parameter of the constitution and statute and it does not mean to supersede the constitution or statute as it did
36
Article 22(1), The Constitution of India,1950.
S.302, Indian Penal Code,1860.
38
S.197,Criminal Procedure Code,1973.
39
Article 12,The Constitution of India,1950.
40
Article 142, The Constitution of India,1950.
41
S.57(1),Indian Evidence Act,1872.
42
S.482,Criminal Procedure Code,1973.
43
S.151,Civil Procedure Code,1908.
37
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT in Ramjawaya kapoor and S.C Advocates on Records case. The decision that consultation means concurrence amount to the amendment in the constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of government from republic to oligarchic which is not permitted to the judiciary.
The main reasons for the injustice is due to non-supervisions of the working of laws in the states , even though the constitution has envisaged the method of supervision under article
256 read with article 365 and 356. The president and Governors has failed to full-fill their oath taken under Article 60 and 159.
Thus we see that present Indian judicial process is not working according to the constitution and there is a need for revival of the ancient inquisitorial system which is also the mandate of article 14. Inquisitorial method alone guarantees parity of arms and disposal of matters on pure legal basis. Individuals cannot overcome disability created due to unequal power balances created due to personal qualification, legal knowledge, and finance and so on.
Inquisitorial mode of judicial process would help state to stand for the victim by eliminating advocacy all together along with improved administrative inquiry into the matter concerned. BY AKSHAY ZAVERI
Page 18
Bibliography: Company, 2nd ed.,2000). .,1984). P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar Review, vol-30, 2003). Maneka Gandhi v Union of India,(1978)1 SCC 248. Mohini Jain v State of Karnataka (1992) 3 SCC 666. Article 12, The Constitution of India, 1950. Article 142, The Constitution of India, 1950. Article 142, The Constitution of India, 1950. S. 57(1), Indian Evidence Act, 1872. LEGAL METHODS PROJECT S.151, Civil Procedure Code, 1908. S.197, Criminal Procedure Code, 1973. S.482, Criminal Procedure Code, 1973.
BY AKSHAY ZAVERI
PROJECT TOPIC:
THE INDIAN JUDICIAL SYSTEM: A CRITIQUE
LEGAL METHODS PROJECT
1. BIBLIOGRAPHY
BOOKS REFFERED:
BLACK‟S LAW DICTIONARY 869(West Group Pub. VII ed.,1999).
JUSTICE M. RAMAJOIS, SEEDS OF MODERN PUBLIC LAW IN ANCIENT INDIAN
JURISPRUDENCE AND HUMAN RIGHTS-BHARATIYA VALUES 24 (Eastern Book
Company, 2nd ed.,2000).
M. RAMAJOIS, LEGAL AND CONSTITUTIONAL HISTORY OF INDIA: ANCIENT LEGAL,
JUDICIAL AND CONSTITUTIONAL SYSTEM 25(Universal Law Publishing Co. Pvt. Ltd
.,1984).
P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar
Review, vol-30, 2003).
CASES REFFERED:
Maneka Gandhi v Union of India,(1978)1 SCC 248.
Mohini Jain v State of Karnataka (1992) 3 SCC 666.
Rudal Shah v State of Bihar AIR 1983 SC 1086.
Union Carbide Corporation v Union of India, AIR 1992 SC 248.
STATUTES:
Article 101,102 And 103, Indian Evidence Act,1872.
Article 12, The Constitution of India, 1950.
Article 124(3) (a),The Constitution of India,1950.
Article 13(1) And 13(2), The Constitution of India,1950.
Article 13(2), The Constitution of India,1950.
Article 130, The Constitution of India,1950.
Article 14, The Constitution of India,1950.
Article 142, The Constitution of India, 1950.
Article 142, The Constitution of India, 1950.
Article 22(1), The Constitution of India,1950.
Article 226 And 32,The Constitution of India,1950.
Article 256, The Constitution of India,1950.
Article 32(3), The Constitution of India,1950.
Article 356 and 365, The Constitution of India,1950.
Article 39A, The Constitution of India,1950.
Article 60 And 159, The Constitution of India,1950.
S. 57(1), Indian Evidence Act, 1872.
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT
S.151, Civil Procedure Code, 1908.
S.151, Civil Procedure Code,1908.
S.166, Indian Penal Code,1860.
S.166, Indian Penal Code,1860.
S.166, Indian Penal Code,1860.
S.197, Criminal Procedure Code, 1973.
S.197, Criminal Procedure Code,1973.
S.197, Criminal Procedure Code,1973.
S.21, Indian Penal Code,1860.
S.21, Indian Penal Code,1860.
S.302, Indian Penal Code,1860.
S.41, Criminal Procedure Code,1973.
S.44, Indian Penal Code,1860.
S.482, Criminal Procedure Code, 1973.
S.482, Criminal Procedure Code,1973.
SS.436 and 437, Code of Criminal Procedure,1973.
SS.436 and 437, Criminal procedure code,1973.
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LEGAL METHODS PROJECT
1. INTRODUCTION
Judicial process is the method of attaining justice1 which seeks to achieve the desirables, and prohibit undesirables. Justice, is itself an irrational concept , However in a layman word justice means absence of fear which is possible only when there is - lack of arbitrariness , freedom of liberty, and equal access to the quick affordable satisfactory credible dispute settlement forum . The essence of justice lies in Rule of law which requires that law of land is stable and not arbitrary that is to say, law is not ruled by the changing government rather the government and its instrumentalities are ruled by the law . In the modern times there are two interpretations of the Rule of law, the first the more traditional view is that of the plenary adhering to the rules of the laws while the second view allows the encompassing of the ideal rules based on criteria of morality and justice within its province. Modern states follow the second principle of rule of law because a law which is stable becomes oppressive after some time , due to its failure to satisfy the needs of the progressive society.
The ideal notion of the rule of law can be traced in ancient Indian legal system which laid greater emphasis on the duty, by making the king as the head of administration . 2Dharma in ancient India did not denote any kind of religion or right but only the performance of the duties. Everyone had to perform his assigned Dharmas (Duties) .The duties assigned to the king was known as Rajadharma which was a combination of several Dharmas , hence it was considered as very pious and supreme Dharma. Although the king was the fountain head of the administration of justice, his powers were limited by the norms of Rajadharma . He neither could impose arbitrary taxes nor could favour his relatives, and if he deviated from the performance of the norms of Rajadharma , the punishment prescribed for him was thousands times more than an ordinary individual . There was no distinction between weaker and stronger and the weaker was able to prevail over stronger with the assistance of the king if his rights or liberty was encroached. This duty approach setup of Rajadharma was distorted with the coming of the Moughals and subsequently after the coming of Britishers.
Power is like a river, if controlled, it brings happiness and prosperity otherwise destruction and curse . Justice without power is inefficient, power without justice is tyranny So in order
1
BLACK‟S LAW DICTIONARY 869(West Group Pub. VII ed.,1999)
“Dharma” is that which upholds, nourishes or supports the stability of the society, maintains the social order and secures the general well-being and progress of mankind” M. RAMAJOIS, LEGAL AND CONSTITUTIONAL
HISTORY OF INDIA: ANCIENT LEGAL, JUDICIAL AND CONSTITUTIONAL SYSTEM 25(Universal Law Publishing Co.
Pvt. Ltd .,1984).
2
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT to make power of the government purposive, efficient and in interest of the people, India adopted a normative written constitution on 26th day of November 1949 demarcating the power arrangement between the three organs of the state namely executive, judiciary, and legislature . The constitution also kept few most cherished values of the humankind beyond the reach of these three organs. Constitution seeks to remove three kind of disparity namely social, economic and political , so that weaker can prevail over stronger with the help of law if his right is violated and, Each organ of the state is required to work in this context without violating the power arrangement of the constitution .
The author in this paper seeks to deal with the critical analysis of the Indian judicial process by analysing its present and past scenario, keeping in mind constitution of India as the
Grundnorm of country .
2. JUDICIAL PROCESS IN ANCIENT INDIA
The Policy of self-restraint was the governing principle in ancient India, which was based on norms of righteous conduct named Dharma. There was no sanction and People used to follow
Dharma on their own, because of its intrinsic merit . however this ideal stateless society didn‟t last for a long time as some person out of , selfish worldly desires, began to flout dharma and created a situation of 'Matsyanyaya ' (big fish devouring small fish) . This situation forced the law abiding people to search for a remedy, which resulted in creation of the institution of kingship and formulation of "Rajadharma" (law governing kings), which was the synthesis of all Dharmas. The object of Rajadharma was to assist and support the achievement by individuals of the threefold ideals (Trivarga) ,and to ensure that they secure wealth (Artha) and fulfil their desires (Kama) in conformity with Dharma and do not transgress Dharma . Dharma had a very wide connotation involving social ,moral, legal and religious
aspect. Since
Dharma
was
entirely
dependent
upon
the
effective
implementation of Rajadharma it was considered as supreme dharma.
Dicey regarded supremacy of law is an essential of the “rule of law” in 1885 . This supremacy of Law has long before found prominence in the principles of Raja dharma , the constitutional law of ancient India . Rajadharma is a classic example of trans- personalized power system which did not allow any personalized or depersonalized power to take over the requirements of justice .
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LEGAL METHODS PROJECT
3. ATTRIBUTES OF ANCIENT LEGAL SYSTEM
The main attributes of ancient Indian legal system as derived from social and legal literatures can be summarised as below:
There was rule of law. Unlike western kings whose command constituted the imperative law, in ancient India Dharma (law) was a command even to the king and was superior to the king. Rules of Dharma were not alterable according to the whims and fancies of the king. The prevalent doctrine was that 'the law is the king of kings '. The doctrine that 'the king can do no wrong ' was never accepted in our ancient constitutional system. If the king violated the Rajadharma the punishment prescribed for him was one thousand times more penalty than what would be inflicted on an ordinary citizen.
Sources of laws (Dharmas) were based on following priority orders – Vedas/Shrutis,
Dharmasastras,The Smrities, Mimansa, Nibandas or commentaries . Customs and sadhachars were also applied if they were in conformity to the Dharmas.
There was separation of power. King had no legislative power; It was vested in a sabha (committee) of wise people. King had only corrective power, thus he could invalidate any custom if it was inconsistent with the Dharma but can‟t create a new law
(Dharma). Though the court presided by the king was the highest court he had no direct role in judicial process where an elaborate system of judiciary consisting of royal courts and people‟s tribunal was operational. King was required to exercise his judicial authority in accordance with the opinion of the judicial officers of the court who were under a clear mandate not to connive with the King when he acted unjustly. The judges were under an obligation to protect the Dharma even if their decisions were against the wishes of the King. Thus in ancient India there was independent judiciary and independent legislature.
Access to justice was very easy. Rajadharma envisaged a mechanism wherein the mere fact of information of violation of one‟s right was enough to set the law into motion.
The King, under the codes of Rajadharma was bound to take cognizance, and therefore bringing a matter to his notice was enough to render it fit for judicial proceeding, to
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT redress the grievances. Thus the king was supposed to restore the stolen property to its owner and if he failed in performance of his duties he had to pay the owner the actual cost of the stolen property.
Procedures were not allowed to defeat the justice . Emphasis was on substance not on form. The method of inquiry was of inquisitorial nature where judge played an active role in bringing the truth and limited aliens (like modern advocates) were allowed so that parity of power can be maintained .,
The principle of "the greatest good of the greatest number", according to which, in order to secure the good of a large number of persons, injustice could be caused to a small number of persons had no application in Ancient India. The ideal laid down was that all the people should be happy (Sarve Janah Sukhino Bhavantu).
4. PARITY OF POWERS AND CRATOLOGICAL ANALYSIS OF ANCIENT
INDIAN LEGAL SYSTEM (JUDICIAL PROCESS).
“Law is the king of the kings; nothing is superior to the law; the law aided by the power of the king enables the weak to prevail over the strong.”3
The beauty of this verse is that it emphasis on the parity of power between the parties and if there is no parity of power than it is the duty of the king i.e., executive to provide help to the disadvantaged so as effectuate the equality principle. It also shows that the law was recognised as a mighty instrument for the protection of the individual rights and liberties.
Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek protection from the law with the assistance of the king, however, powerful the opponent (wrong doer) might be. Thus there was parity of powers between the individuals to seek the equal protection of laws.
3
JUSTICE M. RAMAJOIS, SEEDS OF MODERN PUBLIC LAW IN ANCIENT INDIAN JURISPRUDENCE AND HUMAN
RIGHTS-BHARATIYA VALUES 24 (Eastern Book Company, 2nd ed.,2000).
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT
5.CRATALOGICAL ANALYSIS OF ANCIENT JUDICIAL PROCESS
If we analyse the ancient legal system on the basis of power spectrum , we can say that all six power spectrum bands are balanced in equilibrium to give a just legal system because head count was satisfied with a very high degree, time count was also satisfied because of quick contemporary judgments, ethical count is satisfied because law (Dharma) was the shared conviction of the society having maximum social and moral values , coercion band is satisfied because Praja (people) and Prajapalak(king) both were to follow the dharma in their conduct, interest and influence count is satisfied because vesting of power was in depersonalised manner avoiding the arbitrariness and king was subordinate to the
Rajadharma, besides it just upholding the interest of the public and having positive influence to mass was the rule.
6. JUDICIAL PROCESS IN MODERN INDIA
After independence India adopted a normative constitution . The present Indian judicial process is governed by British imposed adversary system even though there is no mention of it in the constitution . Main attributes of this system can be understood under following heads:– (i) ACCESS TO JUSTICE
The term access to justice is variable according to the variation of the definition of justice, earlier access to justice meant merely the aggrieved individuals formal right to litigate or defend a claim but now it means an equal right of having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum.4 Modern access to justice can be categorized into formal and informal access to justice. The formal access to justice is basically adjudication of disputes by the courts which follow the rules of Civil and
Criminal Procedure. Whereas informal access to justice includes alternative modes of dispute resolution such as Arbitration, Conciliation, Mediation, Lok adalats and Nyaya-Panchayats , which are merely of supplementary nature to the court system . They are not bound by the provisions of C.P.C and I.P.C but has to follow the principles of natural law. Informal and formal modes of justice both are against the principles of parity of law devised by Article 14
4
P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar Review, vol-30, 2003).
BY AKSHAY ZAVERI
Page 7
LEGAL METHODS PROJECT of the constitution5, because in informal modes of access to justice one has to often compromise with his legal rights in interest of time, cost of money etc. which is very much against the guarantee of Article 14 and duty imposed on state therein .
(ii) HURDELS IN ACCESS TO JUSTICE: Formal modes of access to justice also has many drawbacks which are discussed below-
1.
Law of limitation: The aggrieved person has to satisfy first of all that his suit is not barred by the law of limitation act 1963 and if barred by law of limitation the judge may or may not entertain his suit. Thus it is absolutely denial of Article 14 which imposes unqualified duty on state to provide equal protection of laws, and is anathema to any kind of arbitrariness. Law of limitation is nothing but a restatement of exploiting British imposed law of limitation act, thus it is also hit by Article 13(2)6 .
2.
Court fees: With the institution of the suit a court fees is required which is determined by the court according to the provisions of the court fees act of 1870, and on failure to pay the court fees or postal charges the suit may be dismissed. This high cost of court fees compels the litigants to abandon their just claims and defences. Here justice is not given but sold.
Thus court fees act is unconstitutional under Article 13(2) read with Article 14, which was originally a method of raising fund and exploitation by ruler on ruled so that there can be less accountability of the state .It also does not satisfy the ethical, time and other essentials of the power spectrum.
3.
Advocacy: Advocates are inseparable part of the adversarial system, wherein the role of judge is like a referee who decides the case on account of the performance of the both parties advocates. He never intends to provide the justice by bringing the truth, but to award the best competitor. Thus in this situation , the determining factor for the judicial process and justice is the competency of lawyer which depends upon the financial capacity of the party , which results in absolute denial of the parity of power guaranteed by Article 14.
4.
Procedural hurdles: After institution of the suit the aggrieved person has to go through the procedures of C.P.C or Cr.P.C which does not reflects the values of the constitution but the values chosen by the colonial masters. The main procedural hurdles can be summarised below -
5
6
Article 14,The Constitution of India,1950.
Article 13(2),The Constitution of India,1950.
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LEGAL METHODS PROJECT
(A* The aggrieved person has to prove that legal wrong has been committed against him by the defendant. (B*The aggrieved person has to pay the cost of all kinds of judicial processes.
(C* Under adversarial criminal system the rule is that unless a person proved guilty beyond reasonable doubt he is innocent but these rule is violated by the courts, when court refuses to give the bail to the accused on ground of making a classification between Bail-able and nonBail-able offences under sec 436 and 437 Cr.P.C7 .
(D* DELAY : The aggrieved party has to face inordinate delay in getting justice due to unnecessary excess time given in filing of written statement ,counter statement
, amendments in plaints , filing of unnecessary affidavit , Adjournment at every stage of the proceeding , Professional interest of the lawyer in prolonging the life of the suit , vexatious issuing of interlocutory orders, huge arrears of cases are other reasons for causing delay in getting justice Even if the aggrieved person get the decree its execution is not easy. Now justice is a generation to generation fight over one‟s legal right, examples of delay can be seen in Bhopal gas tragedy case8, Rudal Sah case9 , Mohini jain case10 etc.
(iii) DELIVERY OF JUSTICE
Delivery of justice is basically the part and parcel of the executive branch of the government popularly identified as the access to justice through administrative authorities.
Article 25611 gives a supervisory power to the union over state for compliance of laws, and
Article 356 read with Article 36512 is the consequential result for non-compliance of constitutional obligations by the state.
But when the executive fails to perform his duty, the courts venture to deliver justice as a corrective measure. Article 14 casts a duty on the state which also includes judiciary to provide justice by giving equal protection of laws to all its citizens. But it has been seen that on many occasions judiciary has failed to provide the justice according to the provisions of constitution and statutes.
7
SS.436 and 437,Code of Criminal Procedure,1973.
Union Carbide Corporation v Union of India, AIR 1992 SC 248.
9
Rudal Shah v State of Bihar AIR 1983 SC 1086.
10
Mohini Jain v State of Karnataka (1992) 3 SCC 666.
11
Article 256,The Constitution of India,1950.
12
Article 356 and 365,The Constitution of India,1950.
8
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LEGAL METHODS PROJECT
7. CRATOLOGICAL ANALYSIS OF THE PRESENT ADVERSERY LEGAL
SYSTEM ON GROUNDS OF THE POWER SPECTRUM
Power is “the ability to affect another by its exercise”. Power has a close interrelation with the law so in order to understand the role of power in creating, supporting, and changing or subverting law Julious stone provides six power bands to verify the proper exercise of power.
When we examine the adversary system on grounds of these power bands we find following results- (1) Coercion Spectrum: The coercion spectrum is concerned with the degree of coercion involved in the power relation. A valid exercise of power or any valid law must be devoid of coercion or if at all necessary to the minimum. It is beyond doubt that the non-accessibility of justice because of high cost and other procedural hindrances can be termed as the “vulgar notion” of power by the power holder. Rich party can put down the opponents by endless delays and they can drive up expenses by costly discoveries. Poorer parties often cannot afford to pay for investigators, expert testimony, and lawyer‟s time and so on. Many possible witnesses are reluctant to come forward because of the possible harassment and humiliation in cross examination, time lost from work, and so forth .All these acts as excessive coercion.
(2) Ethical Component Spectrum: This count deals with ethical and moral aspects of law and it emphasizes that every law, decision, or policy must satisfy minimum standards of ethics and morality of the society, which differ from society to society. A uniform standard of ethics cannot be laid down for it differs from society to society. As has already been mentioned justice in the present system is hugely influenced by the counsel representing the party. There is no parity of power. Many times justice is not delivered. Adversarial process hinders peaceful resolution of disputes. Lawyers trained to be partisan advocates to promote the interest of the clients, often discord and tensions.
(3) Interest Affected Spectrum: This count draws attention to the problems faced by the subject (in this case litigants),as a consequence of improper exercise of power, that is when their interests are affected by and subordinated to the interests of power wielders(State). In this case victim has to himself fight for justice and state does not provide for any considerable assistance. There are many procedural hindrances in his way and many times such victim is not able to access justice
(4) Influence Spectrum: This spectrum means the degree of influence exerted on the person subject to power. This band differs from the coercion band as influence is a positive but
BY AKSHAY ZAVERI
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LEGAL METHODS PROJECT sanctions are a negative concept .Influence has independent existence whereas coercion is a nonentity without fear and sanction. In adversarial system this spectrum is completely demolished. Rich can easily dodge the clutches of law; advocates can give him ample support. Such thing sets up as an example for other law abiding citizens who feel that they can also get away with law.
(5) The Head Count Spectrum: This spectrum is an inherent feature of all the four above mentioned spectrums barring the Ethical component. This count signifies the number of persons affected by any decision or law. The underlying idea of this band is to protect the interests of maximum number of persons. Justice is the first virtue of social institutions. Basic aim of legal system is to provide justice to every man in the society. But today, in India, our legal system has undergone such a deep state of crises that it is not able to provide justice to common man. Justice is not delivered to the majority of citizens because of various flaws embodied in the present system. Few among them are mentioned above. Justice delivery mechanism has badly failed to come up to the aspirations of half-clad and half-hungry masses of independent India.
(6) The Time Count Spectrum: This is by far the most important aspect of all the six power spectrums, because violation of the Time Count spectrum nullifies all other aspects. The time-count spectrum concerns itself with the stability of the other power spectrums through time. This band has two facets. One, they are self-promotive in the sense that they grow stronger by their own continuance. The second facet of time count is delay i.e., delay acts as an impediment to access and realization of justice and that preventive, as well as and protective remedies should be provided without delay. Both these facets are not fulfilled in the adversarial system. There is inordinate delay in the present system because of various reasons, few of them have been mentioned already. Moreover it has not changed to a stronger position. Thus we find that present adversary system doesn‟t answer the requirement of justice and has defied the promise of preamble of the constitution to provide (justice, social, economic and political). 8. SUGGESTIONS TO IMPROVE JUDICIAL PROCESS
The effective judicial process requires the cooperative effort of all three organs of the
Government. To this effect I suggest following reformation which should follow by the executive, judiciary and legislature –
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LEGAL METHODS PROJECT
Legislature: Legislature being policy formulator must perform following works(1) Parliament must in exercise of its power under article 32(3)13 empower the lower courts to exercise the writs jurisdiction within their local limits under, so that common people may have easy access to the justice.
(2) Parliament must in consultation with judiciary to frame a time limit within which the matter should be disposed of and its failure to attract the punishment.
(3) Parliament should make necessary amendment in advocate Act 1961 to prevent the frequent entry of incompetent person as lawyers.
(4) Alternative dispute resolution system must be proper funded and equipped with necessary infrastructure, So as to reduce the arrears of cases
(5) Parliament should by an act nullify the judgment given by Supreme Court in Ram Jawaya case and Re-presidential Reference case.
(6) Legislature by law must fix the rules according to which the quorum of the judges be fixed, so as to avoid the personal influence of the convening authority on the decision.
(7) Presently there is no supervisory jurisdiction of Supreme Court on the High court to prevent the misuse of their power except in appeal by quashing the judgment, So Parliament should empower the Supreme Court to ask the explanation from a High court judge when it found that he had exercised his power illegally
(8) Parliament by a law establishes an independent body consisting of impartial legal experts to enquire into the conduct of judges whose decisions is quashed by Supreme Court or High Court in appeal.
(9) The parliament through a law should empower UPSC to hold an All India Judicial services examination to fill up the vacancies in High Courts and no judge of high court be appointed in his home state except chief justice of that high court (as he can run the administration more efficiently than non-regional judges); so that the concept of uncle judges can be removed. The vacancy in Supreme Court must be filled up by a selection committee having statutory competence, which consists of chief justice of India, prime minister, law minister, leader of opposition party in Lok Sabha and President. The decision must be taken by the majority of 3:2 and if it is 2:2 the decision of president should be final to elevate or not a high court judge in Supreme Court.
13
Article 32(3),The Constitution of India,1950.
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LEGAL METHODS PROJECT
(10) An amendment in the constitution be made so as to make Article 39A14 as fundamental right, Article 13(3) should also be amended and the word personal contract should be inserted. (11) Section 197CrPC15 should be repealed because it is against article 14 as it gives unequal protection to the corrupt officers and protect their illegal actions and hence is an hindrance in execution of 166 IPC16.
(12) Distinction as to bail-able and non-bail-able offence under section 436 and 437 CrPC17 should be abolished because it is against article 14, 19, 21. There is no reasonable classification as accused is treated as per the convicted person beside this there is also violation of presumption of innocence unless prove guilty. Denial of bail also amounts the complete denial of freedom protected under 19(1) (a)-(g) which is unconstitutional under article 13(1) .
(13) Guidelines given by the Supreme Court in D.K Basu and Joginder Singh cases should be incorporated in section 41 Cr.P.C18 for arrest without warrant
(14) An amendment in section 101, 102 and 103 of Indian Evidence Act 19 be made so as to provide that it shall not be applicable under article 32 and 22620. Under these Articles when
Petition lies it shall be the state upon whom burden of proof shall lie that its act was constitutional. Because in absence of this amendment the petitioner who is already victim of wrong or injury or whose fundamental right is violated has to prove that all it happens against him which is against the ethical and coercion band of power spectrum.
Executive:
Role of executive is policy implementation and ordering of facts from is to ought.
Delivery of justice is basically falls within the province of executive which is rendered the state to provide equal treatment of law and equal protection of laws to every person.
Unfortunately due to lack of ineffective implementation of Article 256 read with 365 and
356, the state often does not fulfil their constitutional obligation, hence the union government should use these supervisory and consequential provision to compel the states to fulfil their duties.
14
Article 39A,The Constitution of India,1950.
S.197,Criminal Procedure Code,1973.
16
S.166,Indian Penal Code,1860.
17
SS.436 and 437,Criminal procedure code,1973.
18
S.41,Criminal Procedure Code,1973.
19
Article 101,102 And 103,Indian Evidence Act,1872.
20
Article 226 And 32,The Constitution of India,1950.
15
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LEGAL METHODS PROJECT
President and governor before giving his assent to an act must satisfy himself that the act is in consonance with the provision of the constitution because he has taken the oath under article 60 or 15921 to preserve, protect and defend the constitution and the law.
The President under article 124 (3) (a)22 should also appoint the distinguished jurist as
Supreme Court judges.
The Government should implement the guideline given by the Supreme Court in
Prakash singh case, so as to separate the investigating police from the law enforcing police and also to make the police free from frequent transfers, political interference etc.
The government should establish more fast track courts to remove the arrears of cases.
It should also equip the judiciary with the modern technology like e-filing of suits, amendments, affidavits, etc. it should also enable the police with these modern technology. Judiciary
The role of judiciary is policy control which comes into picture when executive fails to deliver the justice. In order to make judicial process effective the court must observe following guidelines-
Judiciary must keep in mind that its work is to say authoritatively what the law i.e. policy is controlling. Provisions of Article 14223 and 226 of constitution,
Section 482 Cr.P.C
24
and 151 of C.P.C25 though gives inherent power to the
supreme court and high court to render complete justice, it means only to fill the gap within the parameter of the constitution and statutes and it does not mean to supersede the constitution or statute as it did in Ramjawaya kapoor and S.C
Advocates on Records case. The decision that consultation means concurrence amount to the amendment in the constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of
21
Article 60 And 159, The Constitution of India,1950.
Article 124(3)(a),The Constitution of India,1950.
23
Article 142, The Constitution of India, 1950.
24
S.482,Criminal Procedure Code,1973.
25
S.151,Civil Procedure Code,1908.
22
BY AKSHAY ZAVERI
Page 14
LEGAL METHODS PROJECT government from republic democracy to oligarchic democracy which is not permitted to the judiciary.
When a petition is made to test the legality of the decision of any subordinate court/tribunal the court should only issue the writ of certiorari if grounds are satisfied, it must not issue other writs unless the statutory remedies are exhausted.
The chief justice of India in exercise of his power under Art 13026 should constitute at least its four regular benches in and for the eastern, western , northern and southern regions to hear the appeals from the regional high courts .
It will help the people to have easy access to the Supreme Court. It is also in consonance to the time, ethical , and influence bands of the power spectrum.
Judiciary must accept the norm of democracy that justice not only be done but it appears to be done. How government could fight against corruption if judiciary itself against the Right to Information Act, regarding disclosure of assets on ground of being not a public servant but constitutional authority. It amounts to double standing as on one hand they claim salaries and other benefits on ground of being public servant and denying the liability to disclose the assets by saying not a public servant. However, true fact is that they are public servant within the meaning of sec 21 I.P.C27.
Supreme Court must also correct its illegal wrong judgments which are still being followed in the country.
They must provide the justice when the aggrieved party knocks its door and not try to compromise the dispute as it did in Maneka Gandhi case28, because art
14 guarantees Restitutive Justice.
Judges should play an active role in bringing the truth and not merely being a silent spectator of the dispute.
There should not be presumption of constitutionality of the Act because it tends to presume a preponderance of power in favour of one party and tilts the balance unjustly. This totally affects the principle of parity of power which is ensured through guaranty of equal protection of laws under article 14 as well as article 13(1) and 13(2)29 respectively, asking the injured party to prove the wrong
26
Article 130,The Constitution of India,1950.
S.21,Indian Penal Code,1860.
28
Maneka Gandhi v Union of India,(1978)1 SCC 248.
29
Article 13(1) And 13(2),The Constitution of India,1950.
27
BY AKSHAY ZAVERI
Page 15
LEGAL METHODS PROJECT or injury suffered destroys the guaranty of equal protection of laws. Such an opinion on part of court is extremely low on the ethical count of power spectrum.
OTHER REFORMATION
Section 166 of IPC, 186030 should be enforced „which provides –“Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
“. Under Article 14 of the Constitution it the duty of judiciary (Judiciary is a State as laid down in A.R. Antulay v R.S.Nayak AIR 1988 SC 153131) to render justice but where it fails, it amounts injury under section 44 IPC 32. Judges being public servant within the meaning of section 21 of IPC33, injury caused by them amounts offence under Section
16634 and accordingly they should be punished.
Since section 197 Cr.P.C35 is hindrance and violative of equality provisions of art 14 it should be repelled by legislature.
Court fees Act should be abolished as art 14 imposes unqualified duty on the state to render justice not to do business with justice.
Law of limitation act 1963 should be abolished as it is also against the Restitutive
Justice envisaged by art 14.
Alternative mode of adverbial system that is inquisitorial system should be implemented, as it is also envisaged by the art 14 and is in consonance with the objective of the preamble to secure justice social, economic and political because. , despite of above reformative measures it is difficult to avoid the interference of extra constitutional people (lawyers) to play with justice. In this context we can also take the help of inquisitorial system of French and Italy.
30
S.166,Indian Penal Code,1860.
A.R Antulay v R.S.Nayak, AIR 1988 SC 1531
32
S.44,Indian Penal Code,1860.
33
S.21,Indian Penal Code,1860.
34
S.166,Indian Penal Code,1860.
35
S.197,Criminal Procedure Code,1973.
31
BY AKSHAY ZAVERI
Page 16
LEGAL METHODS PROJECT
9. CONCLUSION
On ground of above cratological analysis of the Indian Judicial process under various heads the writer comes to the conclusion that present adversary judicial system is against the spirit of the constitution and is open violation of its Normative character. Judicial process is run by the persons (advocates), who have nowhere mention in the constitution (except under Article
22(1)36) and justice is not done but is purchased.
All three organs of the state has failed to fulfil their constitutional obligation to render justice according to the mandate of the constitution as various laws which are unconstitutional are still operating in the Indian judicial process few examples of which are sec 302 I.P.C37, Court fees Act 1867, law of limitation , sec 197 Cr.P.C 38etc. .
Judiciary as a state within the meaning of Article 1239 is duty bound to do complete and
Restitutive justice under Article 14 read with Article 14240, but on several occasions it has acted as dispute settlement forum. It is also duty bound under section 57(1) of the Indian
Evidence Act 187241 to take judicial notice of all existing laws having force , whether it is mentioned in the plaint or not but judges deliberately fails to take notice of this section which proves their incapacity and misconduct to deal with the cases rendering them liable for punishment under section 166 IPC and for removal from the post by parliament , but still the legislature has fails to set an example of punishment by virtue of removal of any high/supreme court judge
Under constitutional power arrangement the work of judiciary is to say authoritatively what the law is, i.e., policy controlling. Provisions of Article 142 and 226 of constitution, Section
482 CrPC42 and 151 of CPC43 though gives inherent power to the supreme court and high court to render complete justice, it means only to fill the gap within the parameter of the constitution and statute and it does not mean to supersede the constitution or statute as it did
36
Article 22(1), The Constitution of India,1950.
S.302, Indian Penal Code,1860.
38
S.197,Criminal Procedure Code,1973.
39
Article 12,The Constitution of India,1950.
40
Article 142, The Constitution of India,1950.
41
S.57(1),Indian Evidence Act,1872.
42
S.482,Criminal Procedure Code,1973.
43
S.151,Civil Procedure Code,1908.
37
BY AKSHAY ZAVERI
Page 17
LEGAL METHODS PROJECT in Ramjawaya kapoor and S.C Advocates on Records case. The decision that consultation means concurrence amount to the amendment in the constitution without procedure and the statement that Indian government system is based on Westminster form of government and not on advanced presidential form of government amounts to change the nature of government from republic to oligarchic which is not permitted to the judiciary.
The main reasons for the injustice is due to non-supervisions of the working of laws in the states , even though the constitution has envisaged the method of supervision under article
256 read with article 365 and 356. The president and Governors has failed to full-fill their oath taken under Article 60 and 159.
Thus we see that present Indian judicial process is not working according to the constitution and there is a need for revival of the ancient inquisitorial system which is also the mandate of article 14. Inquisitorial method alone guarantees parity of arms and disposal of matters on pure legal basis. Individuals cannot overcome disability created due to unequal power balances created due to personal qualification, legal knowledge, and finance and so on.
Inquisitorial mode of judicial process would help state to stand for the victim by eliminating advocacy all together along with improved administrative inquiry into the matter concerned. BY AKSHAY ZAVERI
Page 18
Bibliography: Company, 2nd ed.,2000). .,1984). P P RAO, ACCESS TO JUSTICE AND DELAY IN DISPOSAL OF CASES 208( Indian Bar Review, vol-30, 2003). Maneka Gandhi v Union of India,(1978)1 SCC 248. Mohini Jain v State of Karnataka (1992) 3 SCC 666. Article 12, The Constitution of India, 1950. Article 142, The Constitution of India, 1950. Article 142, The Constitution of India, 1950. S. 57(1), Indian Evidence Act, 1872. LEGAL METHODS PROJECT S.151, Civil Procedure Code, 1908. S.197, Criminal Procedure Code, 1973. S.482, Criminal Procedure Code, 1973.
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